England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
His Honour Judge Dowse
7SE51122

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/11/2009

Lord Justice Dyson :

Introduction

1. David Allen is now 18 years of age. He suffers from Duchenne Muscular Dystrophy and has been using an electric wheelchair since an early age. He opened a bank account with the Royal Bank of Scotland ("the Bank") at its main branch ("the main branch") at Church Street in the centre of Sheffield.
2. The main branch is a 19^th century listed building. Access to all of the entrances is gained by flights of stone steps. There are two principal customer entrances to the front elevation, situated at the far right and far left. There is also a staff entrance adjacent to the far right entrance door. The front elevation incorporates two automated telling machines ("ATMs"), which are inaccessible to wheelchair users owing to their height above the ground.
3. The main branch is, therefore, inaccessible to wheelchair users. Following his attempts to use the main branch and complaints by Mr Allen's mother, the Bank suggested that Mr Allen use the branch staff entrance. But this entrance was inaccessible to him too. The Bank also offered what it asserted to be a reasonable alternative, namely a combination of internet banking, telephone banking and the use of branches elsewhere in the city. The Bank also suggested that Mr Allen could use NatWest branches. Mr Allen attempted to do this, but was turned away on the grounds that NatWest did not permit the use of an RBS card at its branches.
4. On 20 August 2007, Mr Allen issued these proceedings alleging unlawful disability discrimination on the grounds of a breach of section 19(1)(b) of the Disability Discrimination Act 1995 ("the DDA") in failing to comply with the duty to make reasonable adjustments in section 21(2) without justification.
5. The court had before it two potential building solutions to the access difficulties encountered by Mr Allen. One solution ("the lobby scheme"), which the Bank had considered and rejected, involved the installation of a platform lift within the entrance lobby adjacent to the customer entrance. The Bank had obtained planning permission for this scheme but rejected it on the grounds that the turning circle required could not be accommodated and the works would cause severe disruption as they required alterations to incoming gas mains, water mains and internal services. The other solution ("the Owen scheme"), which was recommended by the single joint expert, Richard Owen, involved the installation of a platform lift in the area which forms part of the existing banking hall. This was rejected because it would require the loss of an interview room on the ground floor. A similar scheme to the Owen scheme had been rejected for the same reason in about 2002. The main branch has eight interview rooms. Four of these are located on the ground floor and four on the first floor.
6. By an Order made on 16 January 2009, His Honour Judge Dowse declared that the Bank had discriminated against Mr Allen contrary to section 19(1)(b), awarded damages in the sum of £6,500 for injury to feelings and ordered the Bank to install a platform lift in accordance with the Owen solution no later than 30 September 2009.
7. The Bank appeals with the permission of Moses LJ who also granted a stay pending the outcome of the appeal. It does not seek to disturb the award of damages made by the judge.

The relevant statutory material

8. So far as material, the DDA provides:

"19. Discrimination in relation to goods, facilities and services

(1) It is unlawful for a provider of services to discriminate against a disabled person—

(a) in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public;

(b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service;

(c) in the standard of service which he provides to the disabled person or the manner in which he provides it to him; or

(d) in the terms on which he provides a service to the disabled person.

(2) For the purposes of this section and sections 20 and 21—

(a) the provision of services includes the provision of any goods or facilities;

(b) a person is "a provider of services" if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public; and

(c) it is irrelevant whether a service is provided on payment or without payment.

(3) The following are examples of services to which this section and sections 20 and 21 apply—

(a) access to and use of any place which members of the public are permitted to enter;

…..

(e) facilities by way of banking or insurance or for grants, loans, credit or finance.

20. Meaning of "discrimination"

(1) For the purposes of section 19, a provider of services discriminates against a disabled person if—

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of section 19, a provider of services also discriminates against a disabled person if—

(a) he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) For the purposes of this section, treatment is justified only if—

(a) in the opinion of the provider of services, one or more of the conditions mentioned in subsection (4) are satisfied; and

(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(4) The conditions are that—

(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);

21. Duty of providers of services to make adjustments

(1) Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.

(2) Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to—

(a) remove the feature;

(b) alter it so that it no longer has that effect;

(c) provide a reasonable means of avoiding the feature; or

(d) provide a reasonable alternative method of making the service in question available to disabled persons."

9. Prior to its repeal by the Equality Act 2006 ("the EA"), section 53A of the DDA conferred on the Disability Rights Commission the power to prepare and (subject to approval by the Secretary of State and absent any negative resolution of either House of Parliament) to issue Codes of Practice ("the Codes"), giving practical guidance on how to avoid unlawful acts or "on any other matter relating to the operation of any provision" under the relevant parts of the DDA. The Codes were admissible in proceedings and where any provision of a Code of Practice appeared to a court to be relevant, section 53A(8A) provided that it must take that provision into account. Section 42(3) of the EA, which makes transitional provision for the functions of the previous statutory Commissions, provides that "a code of practice issued by a Commission dissolved by virtue of section 36….(a) shall continue to have effect until revoked by the Secretary of State at the request of the Commission for Equality and Human Rights, by order made by statutory instrument". The Code of Practice "Rights of Access: services to the public, public authority functions, private clubs and premises" ("the 2006 Code of Practice") came into force on 4 December 2006: see the Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises)(Appointed Day) Order 2006 (SI 2006/1967).

The grounds of appeal

10. There are five grounds of appeal. Ground 1 is that the judge misunderstood the legal nature of Mr Allen's case. He approached it as if it was an allegation of discrimination by less favourable treatment (section 20(1)), whereas in fact it was a claim that the Bank had failed to make reasonable adjustments in accordance with the duty imposed by section 21. Ground 2 is that the judge misapplied the reasoning in Lewisham London Borough Council v Malcolm [2008] UKHL 43, [2008] AC 1399. Ground 3 is that the judge erred in failing (i) to identify the relevant service that the Bank was providing, (ii) properly to deal with what he refers to as the Bank's concerns and considerations and (iii) to apply the objective test. Ground 4 is that the judge erred in finding that the Bank had not been justified in its treatment of Mr Allen in accordance with section 20(3) and (4). Ground 5 is that the judge gave too much weight to the evidence called on behalf of Mr Allen and discounted the Bank's evidence, in particular that given by Jean Cluness and the report of Mr Owen.
11. I shall start with ground 3, since that is the principal ground on which Mr Lissack relies.

Ground 3

The first criticism

12. The first criticism made by Mr Lissack under this ground is that the judge did not correctly identify the relevant service provided by the Bank. The judge said this at para 15:

"There can be no argument that the Defendant is a service provider within the meaning of Section 19 of the DDA or that its range of services generally offered are those of a normal bank and include the paying in of money, practical matters and advice concerning the opening of accounts including what accounts may be best for the client and the provision of money from cash points as well as obtaining money at the service counter. In my view a client can expect to be offered a facility for confidential discussion and the Bank recognises this in the establishment at Church Street of no less than eight interview rooms."

13. Mr Lissack submits that this statement of the services provided by the Bank was insufficient to enable a proper analysis to be undertaken of the section 21(2) duty to make reasonable adjustments. He says that the judge failed to distinguish between a service (for example, financial service) and the means by which a service is delivered (for example, by telephone or internet banking, or face to face confidential discussion). He submits that the judge failed to identify the particular services which, on Mr Allen's case, could not be used by him at all or without unreasonable difficulty. In the absence of such an analysis, the judge could not properly address the question of what steps (if any) it was reasonable for the Bank to have to take under section 21(2)(a) to (d). The judge's incorrect approach is illustrated by the way in which he dealt with the question of internet banking. At para 50 he said:

"The Bank also sought to assert that David could (and effectively should) use Internet Banking. Of course he cannot use that facility for paying money in or drawing money out. Internet banking is a facility provided by the Bank which does not provide equal services to the services provided within the confines of a branch of the Bank".

Mr Lissack makes the point that the judge did not identify the particular service which he was saying was denied to Mr Allen or acknowledge that internet banking is a means of accessing the principal banking services offered.

14. Mr Lissack submits that the judge should have classified the services into six separate elements. Had he done so, he would have realised that there was no breach of section 21(2) in relation to any of them, since in relation to each element the Bank had taken such steps as it was reasonable for it to have to take in order to "provide a reasonable alternative method of making the service in question available" (section 21(2)(d)).
15. The first element is paying money into the account. Mr Lissack submits that this was not an issue before the judge, since Mr Allen's regular income comprised payments of disability living allowance which were made directly into his account every four weeks. For any other payments that Mr Allen wished to make, the evidence was that a Quick Deposit service was available at other branches in Sheffield which had disability access.
16. The second element is withdrawal of cash. The evidence was that Mr Allen could withdraw cash from ATMs in other banks which had disability access or in some shops which also had that facility.
17. The third element is obtaining information about bank balances. The evidence was that Mr Allen could obtain this information by using an ATM, by telephone or by the internet.
18. The fourth element is making money transfers. The evidence was that this could be done by telephone.
19. The fifth element is opening accounts. The evidence was that an account could be opened by telephone or via the internet. It was also said by Ms Vigar, a manager at the Bank, that home visits could be considered in some circumstances.
20. The sixth element was obtaining advice. At para 51 of his judgment, the judge said that it was possible for arrangements to be made for a customer to be seen at home. He added that it was "notable that no such offer has ever been made in this case".
21. Mr Lissack submits that the judge fell into error in failing to consider each of these services separately. He should have asked in respect of which, if any, of these services Mr Allen was disadvantaged by not being able to have physical access to the main branch, notwithstanding the availability of the Quick Deposit service at other branches, the internet, telephone, ATMs and home visits.
22. In short, Mr Lissack submits that the judge wrongly equated access to the premises with access to the services. The service of providing banking facilities is not the provision of a building where the services are provided; it is the provision of the services and, for present purposes, the six elements which he has identified.
23. In my judgment, the relevant service in this case was the provision of banking facilities at the main branch. Section 19(3)(a) of the DDA provides that examples of services to which sections 19 to 21 apply are access to and use of "any place which members of the public are permitted to enter". Also included are "facilities by way of banking". It is not in dispute in the present case that, unless a platform lift was installed in the main branch, persons whose disability required them to use wheelchairs could not gain access to the main branch and could not, therefore, make use of the facilities that were available at that branch to persons who were not disabled. The analysis of the banking facilities in the way for which Mr Lissack contends cannot disguise this fact.
24. I accept, however, that it was necessary for the judge to examine the six elements identified by Mr Lissack in order to see whether, as the Bank contended, it has discharged the duty under section 21(2)(d) by providing a reasonable alternative method of making available to Mr Allen the facilities that are available at the main branch to people who are not disabled.
25. At para 15 of his judgment, the judge correctly identified the services provided by the Bank. The distinction made by Mr Lissack between the service and the means by which it is delivered may be helpful in some contexts. I do not find it helpful here. The means by which a service is delivered is often an integral part of the description of the service. In any event, section 19(2)(a) defines the "provision of services" as including "the provision of any goods or facilities". The provision of banking facilities by internet or telephone is the provision of different banking facilities (and, therefore, different banking services) from the provision of traditional face to face banking facilities.
26. The judge considered some of the six elements identified by Mr Lissack. He concluded that at least some of the alternative methods of making the facilities available that were relied on by the Bank did not amount to reasonable alternative methods of "making the service in question available to disabled persons". Take the giving of advice. At para 15 he said that a client could expect to be offered a facility for confidential discussion. At para 48, he described the incident on 31 August 2006 when a member of the Bank's staff saw Mr Allen in the street outside the main branch and discussed with him the opening of a savings account and helped Mr Allen to complete the paperwork then and there. It is clear (and not surprising) that the judge did not regard this as a reasonable alternative method to the facility of giving advice which is available face to face to those who are able to have physical access to the main branch. I have already referred to para 51 where the judge noted that arrangements for the giving of advice at home had not been offered to Mr Allen. It is clear, therefore, that the judge found that the Bank had not provided a reasonable alternative method of providing an important element of banking services (the giving of advice) to Mr Allen.
27. But there is a more fundamental point. The judge clearly considered that an important feature of the facilities provided at the main branch was that they were available to customers in the traditional way across the counter. He did not spell this out, but it emerges most plainly from para 54, where he said that "the closest the Bank can get to a reasonable alternative method is its assertion that there are other banks to which David could gain access". He then proceeded to explain why those other banks were not suitable and there is no challenge to that part of the judgment.
28. In my view, the judge was entitled to conclude that the fact that face to face facilities are available at the main branch was of itself an important element of the service provided by the Bank at that branch. Many customers prefer distance banking. But there are many who prefer the traditional way of doing things. The Bank clearly recognises this, since otherwise it would not maintain some 2300 branches throughout the country to which its customers have physical access. Although the judge did not refer to it in his judgment, Ms Casserley drew his attention in her closing submissions on behalf of Mr Allen to the 2006 Code of Practice, para 6.4 of which provides:

"The policy of the [DDA] is not a minimalist policy of simply ensuring that some access is available to disabled people; it is so far as it is reasonably practicable, to approximate the access enjoyed by the rest of the public. Accordingly, the purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large."

29. The theme of para 6.4 was replicated by Sedley LJ in Roads v Central Trains Ltd [2004] EWCA Civ 1541 at [13]:

"The policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore [2002] Fam 1, para 105: "to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large…."

30. The public at large have physical access to banks in order to make use of traditional counter banking services and the Bank's non-disabled customers have physical access to all of its branches, including the main branch. The judge was entitled to conclude that the provision of the alternative methods of making those banking services available that were relied on by the Bank was not a reasonable alternative, unless there was no reasonable way of affording Mr Allen physical access to the main branch. I shall deal with the question whether there was a reasonable way of affording Mr Allen such access when I consider the third criticism made by Mr Lissack at [38] to [46] below.
31. To summarise, I do not consider that the judge was led into error by failing to analyse the nature of the services that were being provided by the Bank with sufficient rigour.

The second criticism

32. The second criticism is directed at para 16 of the judgment, where the judge said:

"Has the Bank made it impossible or unreasonably difficult for disabled people to use the service provided at Church Street and has it taken such steps as it would be reasonable to take to remove or to provide a reasonable means of avoiding or provide reasonable alternative methods of service? If it has is that failure justified? Has the failure to take steps made it impossible or unreasonably difficult for David to use the service."

33. Mr Lissack submits that this paragraph misstates the relevant test in section 21(2) which includes "it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to…." (emphasis added). Mr Lissack submits that (i) paragraph 16 of the judgment ignores the words "have to"; (ii) it may be reasonable for a step to be taken, but this does not mean that it is unreasonable for the step not to be taken; and (iii) the error can be seen when the judge went on to find at para 33 that he did "not accept that [the single joint expert's] report has demonstrated that all methods of achieving disabled access were unreasonable".
34. As to (i), Mr Lissack says that the words "have to" in "such steps as it is reasonable….for him to have to take" in section 21(2) require a strong test to be applied. It is not enough to show that it was reasonable for a step to be taken; before the duty can arise, it must be shown that it is reasonable for the step to have to be taken.
35. The language of section 21(2) is plain and not difficult to understand. The duty arises once (in this case) a physical feature makes it impossible or unreasonably difficult for disabled people to use a service and there is a step which, in all the circumstances of the case, it is reasonable for the service provider to have to take to achieve one of the goals stated in paragraphs (a) to (d). I accept that, by omitting the words "have to" in para 16, the judge did not state the statutory test strictly accurately. But for reasons which I set out later in this judgment, I am satisfied that he did in fact apply the correct test. I would add that I find it difficult to think of circumstances where it would be reasonable for the service provider to take steps to achieve one of the goals stated in paragraphs (a) to (d), but not also reasonable to require it to take those steps. In practice, therefore, it is unlikely to be necessary to apply a two stage test of asking first whether it is a reasonable step and secondly whether it is reasonable to have to take it.
36. As to (ii), I do not find it necessary to decide whether the fact that it is reasonable to require a person to do X necessarily entails the proposition that it is unreasonable not to require him or her to do X. At para 16, the judge rightly asked whether the Bank had taken such steps as it would be reasonable to take to satisfy section 21(2)(a) to (d). That test accurately reflects the language of section 21(2).
37. As for (iii), para 33 does not indicate that the judge applied the wrong test. It was clear that Mr Allen's case was that (a) there was a physical feature which made it impossible/unreasonably difficult for him to use the facilities available at the main branch; and (b) there were reasonable steps which the Bank could have taken and had to take to remove that feature (by adopting the Owen scheme). The question of the reasonableness of the Owen scheme was, therefore, a central issue in the case. It was the Bank's case that Mr Owen had demonstrated that "all the methods of achieving disabled access are unreasonable": see para 3.3.4 of the Bank's closing submissions to the judge. Para 33 of the judgment was a direct response to and rejection of this submission. It has no more significance than that. It does not reveal an application of the wrong test.

The third criticism

38. The third criticism is that the judge failed to apply the correct objective test. At paras 17 to 25 of his judgment, the judge considered the attitude adopted by the Bank to the lobby scheme, when he should have applied a strictly objective test to the application of the duty to make adjustments in section 21. The Bank was opposed to the lobby scheme. Similarly with regard to the Owen scheme, the judge concentrated on the Bank's opinion. He said this in relation to the Owen scheme:

28. It appears to me that this proposal has never been considered seriously by the Bank and so much was obvious from the frank oral evidence from Mr Hannah who made it plain that the project engineers were not permitted to fully consider such a proposal since it involved a loss of an interview room which the Bank would not sanction.

29. It follows, in my judgement, that the Bank has not at any time been open to the proposal of this lift. It has failed to properly consider it. It is therefore impossible to say, as is suggested at paragraph 3.3.2 of the Bank's closing submissions that Mr Fairgrieve's evidence demonstrated that no appropriate solution had been found to resolve the difficulties at Church Street. Since the proposal has never been considered by the Bank it is not possible for the Bank to rely upon questions of structure security or safety. Mr Hannah's observation that "Safety was paramount above all other concerns" can play no part, in my judgement, in a scheme that has not been properly considered by the Bank.

30. I conclude therefore that the failure to consider the proposal must lead to a finding of discrimination under Section 20(1)(a) and Section 20(2)(a) unless the treatment is justified. The burden of showing justification falls upon the Bank.

31. The evidence from the Bank and particularly Miss Jean Cluness (and to an extent Miss Sarah Vigar) was that the Bank's facilities at Church Street are fully utilised. The interview rooms are regularly in use and the loss of such an interview room would have a considerable effect upon this busy branch.

32. In fact no detailed evidence of the use of any of the interview rooms was provided during the course of the hearing, nor is it contained within the substantial body of documentary evidence submitted. The reason for this omission is quite straight forward. The Bank simply declines to consider sanctioning the loss of one of its interview rooms. That failure cannot be justified on any evidence adduced before me.

33. I do not accept that Mr Owen's report has demonstrated that all the methods of achieving disabled access are unreasonable."

39. Mr Lissack submits that the proper test requires a consideration of all the circumstances, regardless of whether they had been considered by the provider of the services or not. The judge should have conducted a balancing exercise in which the nature and extent of the difficulty faced by disabled persons in accessing the particular service sets the context. The factors to be taken into account would include the anticipated cost of any adjustment and the disruption that would be likely to be caused by it; the fact that the Bank had made good efforts at a high percentage of its 2300 UK retail branches to remedy deficiencies in access (see para 68 of the judgment); and the availability of other means of removing or reducing the difficulty and/or otherwise making the service available. All these factors needed to be considered together. For example, the availability of internet and telephone banking facilities should have been considered in conjunction with the cost and disruption of the installation of a lift and not in isolation as was done by the judge at para 50.
40. I accept that what is reasonable for the purposes of the test in section 21(2) must be judged objectively. Mr Allen QC did not seek to argue otherwise. In deciding whether it was reasonable for the Bank to have to remove the offending feature by adopting the Owen scheme, the judge inevitably had to consider the grounds relied on by the Bank to support its case that it was not reasonable for it to adopt the Owen scheme. But provided that the judge assessed the reasonableness of those grounds objectively, his approach cannot be criticised.
41. On a fair reading of the judgment, I consider that the judge did apply an objective test. In doing so, it was inevitable that he would make reference to the reasons advanced by the Bank for its contention that the reasonable adjustments duty did not require it to adopt the Owen solution and that the duty was fulfilled by the alternative methods on which it relied. Thus, at para 45 he considered that the provision of alternative facilities at NatWest branches was not reasonable because Mr Allen's card had been rejected when he tried to access a NatWest branch. At para 47, the judge considered ATMs and accepted that he could access cash at some ATMs. At para 48, he referred to incident when Mr Allen was given advice in the street outside the main branch. The judge considered the Bank's resources at para 20 and the cost and possible disruption that would be involved in the Owen scheme at paras 23, 26 and 27. At paras 59 and 60, he also considered, but rejected as unsuitable, other branches of the Bank at The Moor and Broomhill. He also assessed the implications for the Bank of the loss of an interview room.
42. In his oral submissions, Mr Lissack did not place much weight on the argument that the judge had failed to apply an objective test. Instead, he concentrated his attack on para 30 of the judgment, where the judge sets out his conclusion. He submits that, even if the Bank had failed to "consider" the Owen scheme, that could not logically lead to the conclusion that there had been discrimination contrary to section 20(2)(a).
43. If para 30 is considered in isolation, I am in no doubt that it is legally flawed. In the end, Mr Allen was constrained to accept this. The fact that the Bank did not consider the Owen scheme could not of itself justify the conclusion that there was unlawful discrimination contrary to section 19(1)(b) and 21(2)(a). Put simply, it is a non sequitur. Does this error invalidate the central part of the judge's reasoning? Mr Lissack submits that it does. The question that the judge had to decide on this part of the case was whether the Bank was in breach of its duty in failing to remove the offending feature by adopting the Owen scheme.
44. He dealt with this issue at paras 28 to 33. He found that the sole reason why the Bank objected to the Owen scheme was that it would involve the loss of an interview room. There were no objections of a technical nature or on the grounds that the installation of the lift would create health and safety problems or on the grounds of cost. Indeed Mr Hannah, a regional director of Faithful and Gould, who were appointed as project managers by the Bank to manage its DDA programme, said in his oral evidence that the Owen scheme "does provide a technically competent solution and it overcomes the physical space constraints".
45. As regards the business implications of the loss of a room, the judge referred to the evidence of Ms Cluness who is employed by the Bank as a manager in the Operations Support Team. She said that all eight interview rooms were fully used. But she could not give any direct evidence about this. She conceded that the Bank had not considered the possibility of reducing the size of the rooms so as to compensate for the loss of one room or finding an additional room by opening up one of the upper floors or in some other way. Nor had there been any costing of the effect of losing one of the interview rooms. In the light of this evidence, the judge concluded that, despite the loss of one of the existing interview rooms, it was reasonable to require the Bank to adopt the Owen scheme. That is why the judge made the statement that he made at paras 32 and 33.
46. As I have said, the judge should not have concluded that a breach of section 19(1)(b) and 21(2)(a) was proved by the Bank's failure to consider the Owen scheme. But it is clear that what he meant was that, by failing to consider the proposal, the Bank was not in a position to adduce evidence to show that the duty to make adjustments imposed by section 21(2) did not require it to remove the offending physical feature by adopting the Owen scheme. The judge knew that the Owen scheme would remove the offending physical feature and that the only argument advanced against it was that it would involve the loss of one of eight interview rooms. Whether a step is or is not unreasonable involves an exercise of judgment taking into account all the circumstances of the case. This court will only interfere if it is satisfied that the judge misdirected himself or reached a conclusion which no reasonable judge could have reached. Although the language used by the judge was unfortunate, I am not persuaded that he misdirected himself. As I have said, he addressed the central questions which were whether the reasonable adjustments duty required the Bank to adopt the Owen scheme or whether it was a sufficient discharge of that duty that the Bank made available the alternative facilities on which it relies. In my view, the judge addressed these questions objectively and reached a conclusion which was open to him on the evidence.
47. By way of a postscript to ground 3 as a whole, I should add that it was common ground, for the purposes at any rate of this appeal, that the correct sequence of reasoning that should have been followed by the judge before he could conclude that there had been unlawful discrimination contrary to section 19(1)(b) and 21(2), involved asking the following questions:

i) Was the Bank a provider of services within the meaning of section 19(2)?

ii) Did a duty arise under section 21(2) i.e. did the physical feature make it impossible or unreasonably difficult for disabled people, or a class of disabled people, to use the service?

iii) If so, were there reasonable steps that should be taken to remove, alter, provide a reasonable means of avoiding, or a reasonable alternative method of service?

iv) If so, did the Bank take those steps?

v) If not, did the failure to take those steps make it impossible or unreasonably difficult for Mr Allen to use the service?

vi) If the answer to (v) is yes, is the failure to take the steps justified in accordance with section 20(4)?

48. As regards (i), I have already dealt with the question of whether the Bank was a provider of services and what they were. The judge dealt with this at para 15. As regards (ii), the judge raised the section 21(2) question at para 16, although unhelpfully in that paragraph he rolled it up with other questions. There was no dispute that there was a physical feature of the main branch (no disabled access) which made it impossible or unreasonably difficult for Mr Allen to use the facilities available at that branch. Step (iii) was critical in this case. Was the Bank in breach of the duty to take such steps as were reasonable in all the circumstances of the case for it to have to take in order to remove the feature by installing a lift (as was contended on behalf of Mr Allen) or was the duty discharged by the provision of reasonable alternative methods of making the facilities available (as was contended on behalf of the Bank)?
49. I have already referred to those parts of the judgment where the judge dealt with the alternative method point and rejected the Bank's contention that it had discharged its duty by reference to section 21(2)(d) and to those parts where he dealt with the question whether the Bank was in breach of section 21(2)(a) in failing to adopt the Owen scheme so as to remove the offending feature.

Ground 1

50. Mr Lissack draws attention to the fact that there are signs in the judgment that the judge believed this to be a claim on the grounds of less favourable treatment contrary to section 20(1). He points in particular to the fact that in the first draft of the judgment that he circulated to the parties, para 30 included the words "under section 20(1)(a) and" between "discrimination" and "section 20(2)(a)". These words were deleted from the final approved version of the judgment. Mr Lissack also relies on the fact that the judge referred to Malcolm in para 49. Malcolm was a less favourable treatment case and, it is common ground, had no application to the present claim.
51. It is rightly conceded by Mr Allen that there is some confusion in the judgment between section 20(1) and (2). But any consideration of less favourable treatment by the judge cannot detract from his central findings and conclusions in respect of the duty to make reasonable adjustments. Most of the judgment and findings are correctly directed to the allegation of breach of the duty in section 19(1)(b) and 21(2). I am satisfied that the unfortunate confusion (which, to some extent was contributed to by the presentation by counsel for the Bank, who was not Mr Lissack) did not infect the judge's findings on the issue that was before him.

Ground 2

52. Mr Lissack submits that, if the judge did have jurisdiction to deal with a less favourable treatment claim, he erred by failing to apply Malcolm correctly.
53. In my judgment, there is nothing in this ground of appeal. If the claim had been a less favourable treatment claim, it would have been necessary to consider Malcolm. But it was not.

Ground 4

54. The complaint here is that the judge failed to take account or sufficient account of the Bank's submission that section 20(4)(a) was satisfied on the facts of this case. As we have seen, at para 29 of his judgment the judge said: "Since the proposal has never been considered by the Bank it is not possible for the Bank to rely upon questions of structure security or safety. Mr Hannah's observation that "Safety was paramount above all other concerns" can play no part, in my judgment, in a scheme that has not been properly considered by the Bank".
55. Mr Lissack submits that the judge failed to consider justification at all. He says that the Bank demonstrated that it had health and safety concerns in relation to the proposed platform lift and that these gave rise to a sustainable belief that alternatives ought to be considered.
56. There is some confusion in this ground of appeal. There may have been safety concerns expressed in relation to the lobby scheme. But it was the Owen scheme that formed the basis of the judge's decision at paras 28 to 33. As I have said, the evidence was that there never was any safety or indeed security concern on the part of the Bank in relation to the Owen scheme. That is the short and decisive answer to ground 4.

Ground 5

57. The final ground of appeal is that the judge generally erred in his approach to important issues of fact. It is said that the judge gave too much weight to the evidence adduced on behalf of the Mr Allen and too little weight to the Bank's evidence, in particular the evidence of Ms Cluness in relation to the interview rooms and the evidence of Mr Owen at paras 8.6 and 9.8 of his report as to the disruption that would be created by the Owen scheme. It is also said that the judge wrongly overlooked the substantial efforts undertaken by the Bank to provide disabled access to disabled users across the UK.
58. The judge took the evidence of Ms Cluness into account. He heard her give that evidence. The weight that he gave to it was a matter for him. He was entitled not to be persuaded by it for the reasons mentioned at [44] above. The disruption entailed by the Owen scheme was not a matter on which reliance was placed at the hearing.
59. As regards the Bank's general record in discharging its obligations under the DDA, the judge said this at para 68:

"I have already made it plain that I find that the Bank has not approached this case and the difficulties which David faces with the zeal that one could have expected. I am prepared to accept that the Bank has about 2300 branches in the United Kingdom (see the witness statement of Mr Ian Hannah at page 364 paragraph 5). I am also prepared to accept that the Bank had made good efforts at a high percentage of its branches to remedy deficiencies in access to disabled persons. It has not done so for the Church Street branch in Sheffield."

60. In the light of this paragraph, the criticism that the judge overlooked the Bank's general efforts is unfounded. But as the judge said, however well the Bank may have performed generally in this difficult area, it had not discharged its statutory duty at the main branch in Sheffield.

Overall conclusion

61. For the reasons that I have given, I would dismiss this appeal.

Lord Justice Hughes:

62. I agree that this appeal should be dismissed for the reasons given by Dyson LJ.

Lord Justice Wall:

63. I agree that this appeal should be dismissed for the reasons given by Dyson LJ, whose judgment I have had the advantage of reading in draft. I add a short judgment of my own out of deference to Mr. Lissack's careful and well structured attack on the judgment.
64. Like Dyson LJ, however, I do not believe that the judge misdirected himself in any fundamental way. This was a physical access case. The Claimant wanted to use counter facilities which the Bank offered as part of its services at its main branch in Sheffield. The claimant could not access those facilities, and in my judgment a duty on the part of the Bank plainly thereby arose under section 21(2) of the Disability Discrimination Act (DDA).
65. There were, on the facts as found by the judge, reasonable steps which could be taken by the Bank to make disabled access possible. The Bank did not take those steps, giving as its reason, not the disproportionate cost of carrying out the work, but simply the fact that it would lose the use of an interview room. The failure to take those steps undoubtedly made it unreasonably difficult for the claimant to use the services provided by the Bank, and the judge was entitled to find that the failure on the Bank's part to take the necessary steps was unjustified. In my judgment, therefore, the claimant was discriminated against by the Bank within DDA section 20(2) and the judge was entitled so to find, albeit that the structure of his judgment, and the means whereby the judge reached his conclusion are open to criticism.
66. Speaking for myself, I acknowledge that there was a superficial attraction about Mr. Lissack's analysis of the individual services which the Bank could provide without taking the steps necessary to facilitate the claimant's access to counter services. However, it seems to me that this analysis broke down when applying the words of DDA itself, particularly sections 19(1)(b) and 19(3)(a). In addition, and without in any way wishing to doubt the good faith of the Bank, it does seem to me that the structure of Mr. Lissack's submissions amounted, in reality, to a means for the Bank to escape from the provisions of the Act – certainly as a means of avoiding steps which were in my judgment reasonable for the Bank to have to take in order to facilitate the claimant's access to the services which he wished to use.
67. Like Dyson LJ I do not give the words "have to" in section DDA 21(2) the significance which Mr. Lissack would have us give them. In this respect, I agree with Dyson LJ's reasoning in paragraph 35 of his judgment. In addition, the words "have to", as it seems to me, apply to the reasonable steps which the service provider is required to take in order to make the necessary adjustment. In other words, if – as was the case here on the facts - the steps are reasonable, the service provider is obliged to take them.